Prinsep and Banerjee, JJ.
1. It was found by the Settlement officer in this case, which has been dealt with under Chapter X of the Bengal Tenancy Act, that 4 out of the 7 bighas of lakhiraj land was held by the defendant under that title, and although it was admitted on behalf of the zemindar that at no time has he been in receipt of rent of any of those lands, either of the larger tenure of 7 bighas, or of the smaller exempted as rent-free, or of the 3 bighas, the difference between the two, the Settlement officer has recorded the 3 bighas as rent-paying land and made it liable to the payment of certain rent settled by him. There is certainly no authority for the assumption of such power on the part of the Settlement officer The only provision of the law under which he could make a settlement of rent in respect of excess land, is Section 104, and that does not apply to lands held by one who is not a tenant in respect of other lands to which they have become' attached. It seems to us rather that the Settlement officer was assuming to himself the functions of the Civil Court to resume lands hitherto held rent-free, but in his opinion as a trespasser.
2. The District Judge, however, very properly modified the decree of the first Court. He held that inasmuch as the plaintiff had never realized rent from the defendant in respect of the lands in dispute, admittedly some lands were lakhiraj, there was no reason to suppose that the remaining land was not also lakhiraj. However that may be, in the view that we take, it was not competent to the Settlement officer to assess those lands with rent. The appeal must, therefore, be dismissed with costs.